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the document was written, we certainly could be legally frozen in time. The option

of amending the Constitution is a long and difficult process, so that is not always a

viable way for the Constitution to reflect changing norms and values. Justice William

Brennan, a critic of originalism, also argued it was “arrogance cloaked in humility” to

presume to know what the framers intended. According to this view, interpreting the

Constitution is always somewhat subjective and it is misleading to claim otherwise.^65

Political Factors

The living Constitution perspective points to the second set of influences on Supreme

Court decision making: political factors. Indeed, many people are uncomfortable

thinking about the Court in political terms and prefer to think of the image of “blind

justice,” in which constitutional principles are fairly applied. However, political

influences are clearly evident in the Court—maybe less than in Congress or the

presidency, but they are certainly present. This means that the courts respond to

and shape politics in ways that often involve compromise, both within the courts

themselves and in the broader political system.

Political Ideology and Attitudes There is evidence that justices’ ideology or

attitudes about various issues influence their decisions. Those who argue that this is

the most important factor in understanding Supreme Court decision making are said

to take an attitudinalist approach. Liberal judges are strong defenders of individual

civil liberties (including defendants’ rights), tend to be pro-choice on abortion,

support regulatory policy to protect the environment and workers, support national

intervention in the states, and favor race-conscious policies such as affirmative action.

Conservative judges favor state regulation of private conduct (especially on moral

issues), support prosecutors over defendants, tend to be pro-life on abortion, and

support the free market and property rights over the environment and workers, states’

rights over national intervention, and a color-blind policy on race. See the What Do the

Facts Say? feature for more on how the balance between liberal and conservative judges

has shifted.

These are, of course, just general tendencies. However, they do provide a strong basis

for explaining patterns of decisions, especially on some types of cases. For example,

there were dramatic differences in the chief justices’ rulings on civil liberties cases

from 1953 to 2001: Earl Warren took the liberal position on 79 percent of the 771 cases

he participated in, Warren Burger took the liberal position on 30 percent of 1,429 cases,

and William Rehnquist took the liberal position on only 22 percent of his 2,127 cases.^66 If

justices were neutrally applying the law, there would not be such dramatic differences.

Proponents of the attitudinalist view also argue that justices who claim to be strict

constructionists or originalists are really driven by ideology because they selectively

use the text of the Constitution. For example, Justice Thomas voted against the

University of Michigan’s affirmative action program without considering whether the

authors of the Fourteenth Amendment supported the practice (the historical record

shows that they supported similar policies for the newly freed slaves). Therefore, if

Justice Thomas had been true to his originalist perspective, he would have supported

affirmative action, but his ideology led him to oppose the policy. The example of Hugo

Black’s contradictory position on free speech rights cited earlier demonstrates that a

liberal textualist view may also be inconsistently applied.

Other Justices’ and Politicians’ Preferences Another approach to understanding

Supreme Court decision making, known as the strategic model, focuses on justices’

The words of the Constitution...

are so unrestricted by their

intrinsic meaning or by their

history or by tradition or by

prior decisions that they leave

the individual Justice free, if

indeed they do not compel him,

to gather meaning not from

reading the Constitution but

from reading life.

—Justice Felix Frankfurter

attitudinalist approach

A way of understanding decisions

of the Supreme Court based on the

political ideologies of the justices.

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